I just returned last night from the American Immigration Lawyer’s Association’s 2012 National Day of Action, which happens every spring as surely as Washington D.C.’s cherry trees blossom.

During this event hundreds of immigration lawyers of various political persuasions coalesce at the Capitol and then fan out to visit their respective Congressional representatives to discuss the important immigration issues of the day. This being an election year, there is no new immigration reform legislation on the table to discuss, despite how badly broken our system has become. We did have some important talking points that included:

supporting ICE’s budget request for increased alternatives to immigration detention funding, which this year is over $2 billion for the detention of 34,000 immigrants per day, including 40% who have no criminal history;

the redesignation of the EB-5 regional center program, which expires on September 30 and has brought billions of investment dollars to the U.S. in order to enhance job creation for Americans;

In visiting representatives from Minnesota, South Dakota and North Dakota (which comprise our immigration district) I was struck by the fact that nearly all of the Congressional aides acknowledged the problems and were well aware of them. Even our most conservative representatives had heard repeatedly from farmers about how crippling and unworkable the current agricultural visa system is. Their dilemma is that they fear their constituencies. Immigration is such a hot button topic that they would rather remain silent on immigration than risk coming under political fire (the way that Rick Perry did for supporting in-state tuition for unauthorized residents of Texas.) And yet, recent studies show that 70% of Americans support immigration reform for farm workers.

This inertia isn’t unique to immigration, either. As one Senatorial aide told us, nothing significant is going to happen until after the next election. He said that there is a window of about 18 months in every six year cycle when things can actually get done.

There were still a few moments of fresh air on that beautiful spring day, such as an empassioned lunch-time speech by Illinois Congressman Luis Gutierrez, chair of the Congressional Hispanic Caucus Immigration Taskforce, who believes that immigration reform cannot wait simply because of the fears of politicians. He said, “Folks, we need you to tell your stories! These stories need to be heard!” This immediately led me to wait for him outside and hand him a copy of Green Card Stories, which does exactly that. When he heard what the book was about he literally grabbed me and kissed me . My friend who was standing nearby reported that he saw tears well up in Representative Gutierrez’s eyes on hearing that we’d created such a book, which is exactly the response we’d been hoping for in our campaign to get a book onto the coffee table of every member of Congress (which you can participate in here.)

Next year, once the Presidential election hoopla is over, will be the most critical period for bringing about reform. One measure is particularly on my mind, and it relates to many of the others mentioned above. We need honest reform legislation that will allow our nation’s agricultural and other essential workers to work legally in this country. Every Congressional aide we spoke with in our district agreed that an unfair burden has been placed on farmers and similar business people who are trying to do the lawful thing in hiring badly needed workers to bring in the crops, milk cows, and process meat. As I’ve seen from first-hand experience, our current migrant worker program is expensive, unwieldy and unworkable. The truth is that most employers in these industries hire workers whom they fear may have improper documents, but they have no alternatives. As Mother Jones reports in this month’s story on the impact on Alabama farmers of its recent immigration crack-down, there simply aren’t enough American workers willing and able to do the back-breaking work that immigrant workers have long done in our country. While most of the employers I see do not exploit these workers, it certainly is easier to do so in today’s climate of detention, deportation, and separation from family.

Which brings us to the fact that today, March 31, is Cesar Chavez Day. Today would be the 85th birthday of this great civil right’s leader, who came from a family of migrant farm workers. He fought for humane treatment and fair wages for farm workers through boycotts and marches back in the 1970′s, when I was in high school. I still remember my family doing its small bit by boycotting lettuce. While his activism helped improve the lives of many, Cesar Chavez warned that the struggle would never end, which rings truer today than it ever has. If only we could devise a fair and honest system of immigration for the essential workers our country we would no longer need to worry so much about the devastating aftermath of our deportation policies, as we would see a major decline in deportation instead of the current, steady increase.

Finally, I want to mention a man of similar background to Cesar Chavez, who was honored at the American Immigration Council’s annual Immigrant Achievement Awards Thursday night in D.C. Dr. Alfredo Quinones-Hinojosa came to the U.S. at age 19 from Mexico without documents, picked cotton, shared a one room apartment with five family members, and aspired to something more. He studied English, excelled in school, and graduated cum laude from Harvard Medical School, eventually becoming a professor of neurosurgery at Johns Hopkins Medical Center, working on a cure for brain cancer.

He reports that working in the fields was more difficult for him than going through medical school. When he received his award he didn’t dwell on his accomplishments, but rather spoke about how much it pains him that today’s young people in similar circumstances do not have the opportunity to utilize their talents because they have no practical way of becoming legalized.

As a society, we urgently need to change our immigration policies so that people like Dr. Q (as he is called) can come out of hiding and lend their talents to the development of our great immigrant nation. We can overcome the lack of political will by showing our leadership that we care and that we support reform. Cesar Chavez is famous for something else, by the way, which is the expression, “Sí se puede.” Translation: “Yes we can.”

Last week I ventured into an alternate reality. Like the child, Alice, descending through the rabbit hole, I engaged on immigration with Executive-Branch officials, immigration lawyers, members of Congress, including the indefatigable champion of immigration reform, Rep. Luis Gutierrez, their staffs, and a group of 7th and 8th graders advocating on the Hill for passage of the DREAM Act. At the same time, bloggers, Tweeple and cable-TV bloviators could not stop talking about the separate comments of a current member of the Supreme Court and of a former judge.

The sitting jurist is Justice Anthony Kennedy, whose enigmatic notions of liberty will likely spell the fate of President Obama's signature measure, the Affordable Care Act, including its provision of medical coverage to uninsured children.

The ex-judge, once a Virginia magistrate, is Robert Zimmerman, father of the man who slayed 17-year-old, Skittles-armed Trayvon Martin. Magistrate Zimmerman enraged many by observing, implausibly, that he is tired of "all the hate" coming from President Obama, apparently referring to the pitch-perfect, hate-free and only remarks of the President on Trayvon's death. As the Washington Post reported, President Obama said:

I can only imagine what these parents are going through . . . And I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened . . . If I had a son, he’d look like Trayvon . . . When I think about this boy, I think about my own kids.

Also last week, the Director of USCIS, Alejandro Mayorkas, spoke poignantly (even more intimately than in his earlier writings) of the losses and sacrifices his parents endured as they gave their children unimagined opportunities in America. He recalled an indomitable father who lost his livelihood and property in Castro's Cuba and yet built a new business in faraway California. He remembered a loyal, loving mother who came here as a refugee but would not rest until his brothers joined them in America.

Love of children, however, only goes so far within the Beltway. Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, "it's the moral thing to do." These under-age advocates, however, didn't rely solely on the heart and soul. Citing a RAND study, they also pitched arguments to the head, noting that the economic benefits of giving DREAMers legal status would be a net economic plus for America. Their petitions, though politely received, seemed mostly to fall on deaf ears. The Capital cognoscenti all acknowledge that there is no chance for a vote on the DREAM Act before November's election.

Trying to put lipstick on this homely pig, a senior ICE official claimed at a bar gathering last week that the PD program, though in its infancy, is proving successful. I challenged him, noting that none of the members of ICE's union, constituting the bulk of ICE's 7000-person workforce -- have taken PD training. Another lawyer agreed, recounting the words of an ICE officer who told her, "I'm a deportation officer, not a discretion officer." Undaunted, the senior ICE official responded that, though the union members make the arrests, ICE supervisors and managers decide on grants or refusals of PD. Still, the fact remains, as ICE admits, that only 1% of detained immigrants and 8% of those in removal proceedings have been given PD.

Worse yet, PD by itself, without a companion grant of deferred action status (which offers a path to a work permit), is no more protective of a DREAMer's well being than snake oil. A PD grant without deferred action status allows the grantee one hard-hearted benefit -- the opportunity to vegetate in America, like a bromeliad, on thin air. Administration defenders of the PD-only policy say that deferred action is the most precious form of PD, requiring multi-level signoff within ICE. Similarly, at USCIS deferred action can only be granted on the recommendation of a Field Office Director and the approval of a Regional Director. Astonishingly, according to Congressional staff and agency insiders, the USCIS units that decide the vast majority of applications for immigration benefits (the Regional Service Centers in Vermont, Texas, California and Nebraska) have no authority to grant deferred action.

If President Obama really cares deeply about children, he must do more than applaud his Justice Department for its proper decision to investigate the senseless killing of Trayvon Martin. He must also explain what "every parent in America should be able to understand" and show "why it is absolutely imperative" that we not waste our DREAMers' young lives.

The President should also order ICE and USCIS to grant deferred action status generously, with less reliance on time-consuming case-by-case analysis and instead on an approach that is more quick and predictable. Perhaps, the method for determining deferred-action eligibility could be a presumptive yes-or-no decision based on a point system whereby values or demerits are calculated in alignment with the positive and negative factors identified in the June, 2011 Morton Memorandum. The point system should feature a two-way override. ICE should have discretion where warranted to overturn a presumptive "yes," and the person seeking deferred-action should be allowed to present evidence and seek to reverse a presumptive "no." This presupposes that we eliminate the charade that deferred action cannot be requested but merely is something that dawns on an immigration officer once s/he has stumbled upon facts warranting this act of administrative grace and convenience.

The case-by-case, PD-only policy has failed. At best, it has helped a tiny number of people to try and live as air plants in America. USCIS (and ICE, for those in immigration proceedings) should charge a filing fee to cover the cost of considering applicant-generated requests for deferred action. In these times of budgetary constraint, this is the only way to resolve the problem of large numbers of unauthorized persons with positive traits and abiding ties to this country who present no danger and are too numerous to deport at an affordable cost.

* * *

As my week in Washington ended, I couldn't help but note the plentiful examples of our nation's founding, an action based on the same moral principles of "life, liberty and the pursuit of happiness" as cited by the junior high students who last week urged passage of the DREAM Act. America's seminal document, the Declaration of Independence, as Alex Nowrasteh of the Competitive Enterprise Institute, noted last week ("The Founders' Immigration Policy"), remains alive today. Our forebears, in announcing their separation from England, explained that severance of common citizenship with the British was necessary because the American colonists had "appealed to [the British people's] native justice and magnanimity" to reverse the "usurpations" of King George III, but nonetheless they "have been deaf to the voice of justice." Oh son of a Kenyan and son of Cubans, be not deaf to the voice of justice. If you could adopt more children, they should look like our DREAMers.

Employers who file perfectly bonafide H-1B petitions for certain occupations face unreasonable denials from the USCIS. One H-1B occupation that is especially vulnerable to a denial is Market Research Analyst. The USCIS’s rationale for the denial is that the occupation must require a degree in the actual position and not in closely related fields. Thus, even if it is acknowledged that a Market Research Analyst requires a degree in closely related fields such as business, marketing, economics, sociology or psychology, but not specifically in market research analysis, that can provide a basis for the USCIS to arbitrarily deny the H-1B petition. There is clearly no requirement that the specialized degree for entry into the occupation needs to be in a single academic discipline. This may be true for occupations such as law or medicine, but if the USCIS applies such narrow criteria, a lot of occupations will not qualify for the H-1B visa.

InTapis Int'l v. INS, 94 F Supp. 2d 172 (D. Mass 2000), the beneficiary was sponsored for H-1B classification as a showroom manager The petition was denied because the employer could not demonstrate that the position required a degree in showroom management, although the position required a degree in business administration, marketing or related field as well as additional training or experience in the field of interior design. In that case, the court reversed the denial on the ground that such a narrow agency interpretation would preclude any position from satisfying the "specialty occupation" requirements where a specific degree is not available in that field.

Yet, the USCIS continues to use this faulty interpretation in denying H-1B petitions. This is precisely what recently happened to an employer who sought H-1B visa classification for a foreign national in the specialty occupation of Market Research Analyst who had a degree in marketing and finance. In Residential Finance Corporation v. USCIS, 2012 U.S. Dist. LEXIS 32220, decided on March 12, 2012, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio (Eastern Division) chided U.S. Citizenship and Immigration Services (USCIS) for denying an H-1B petition to a market research analyst with a bachelor's degree in closely related fields.

The issue before the court in Residential Finance Corporation was whether USCIS was incorrect in concluding that there was not a"specialty occupation" involved. The court noted that a specialty occupation is one that requires attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor's Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance. The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

"Perhaps most bewildering is that Defendant rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record," the judge said.

Judge Frost continued: "Defendant continues to reject this record in favor of supporting a flawed denial. What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decision making. Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved."The judge pointed out that USCIS expressly admitted "inexplicable errors" in its briefing, such as references to the wrong sections of the OOH, and that the agency's decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.

Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested. Instead, he said, they constituted "a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition." If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, "it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning." Noting that the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position, Judge Frost said that USCIS had 'ignore[d] the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors."

Judge Frost concluded that USCIS failed to meet the "fundamental threshold for rational decision making and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors." He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered that USCIS grant the petition and change the beneficiary's status to H-1B nonimmigrant.

Employers and their attorneys should use these decisions to advocate for their clients in case the USCIS absurdly asserts that the position does not require a degree in a single academic discipline. INA § 214(i) defines a specialized occupation as requiring "(A) theoretical and practical application of a body of specialized knowledge; and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." While it is true that INA § 214(i) requires a bachelor's degree in a specific specialty for the position to qualify under the H-1B visa classification, it should be argued that this section does not restrict it to a degree in a single specialty. For instance, a position for a computer programmer analyst could require a bachelor's degree in specialties such as computer science, management information systems, mathematics, engineering or closely related fields. All of these specialties could qualify a person for this specialty occupation. Congress could not have intended that INA § 214(i) be restricted to a single specialty, namely, computer science, and preclude the demonstration of other specialties, such as mathematics or engineering disciplines, that could also qualify a nonimmigrant for the specialty occupation of computer programmer analyst.

If your case is denied, do not lose hope. You can always litigate a good case in federal court and try to get the same favorable outcome as in Residential Finance Corporation and Tapis International.

[Blogger's Note: Today's blog comes from an erstwhile Washington insider, Leon Sequeira, a former Assistant Secretary of Labor for Policy at the U.S. Department of Labor, who offers a view beyond the ken of most business immigration lawyers, including myself. Leon's topic is the arcane and dense subject of the H-2B visa category for skilled workers in short supply (proven through a labor market test) whose prospective job will be seasonal or "temporary." U.S. Citizenship and Immigration Services says a job is temporary if it involves "a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need." H-2B workers must also be coming "temporarily" to the U.S. (meaning that s/he can establish the intent to return to his/her permanent residence abroad). Moreover, not every foreign citizen can obtain an H-2B visa; rather, the individual must be a citizen of one of an alphabet soup of countries, ranging from Argentina to Vanuatu.

Leon also represents a group of plaintiffs in a pending suit against the DOL challenging its administration of the H-2B visa program.

Because he knows whereof he speaks, this post is a must read for anyone wanting a clear understanding of how the Executive Branch can reap chaos when it builds an immense regulatory superstructure to interpret spare legislative text and regulate the U.S. economy. The law of unintended consequences is thus on full display.]

Immigration-Reform Duplicity:

The Obama Administration's New Temporary Worker Rules

By Leon Sequeira

We’ve all heard lots of happy talk over the past few years from the Obama Administration about the need for comprehensive immigration reform. Regular readers of this blog are no doubt familiar with the President’s platitudes concerning his desire to do something about the undocumented and our broken guestworker programs. After three-plus years, however, many are left wondering where and when we’ll actually see some action. Lost in all the focus group-tested talking points and splashy videos on the White House website, touting a commitment to fixing our immigration system, is the fact that one of the President’s cabinet secretaries has been quite busy implementing immigration reform – a very troubling version of immigration reform.

On January 21, the Department of Labor released a massive 145-page revision of the H-2B temporary non-agricultural worker program regulations that will dramatically increase the bureaucracy, complexity, and cost of the program. This so-called “reform” follows closely on the heels of DOL’s revisions last year to the regulations describing the process for calculating wage rates in the H-2B program. Taken together, the two regulatory packages look a whole lot like a comprehensive effort to destroy a guestworker program. The H-2B program enables employers to hire foreign workers to fill relatively lower-skilled temporary or seasonal non-agricultural positions when U.S. workers will not take the jobs. H-2B should not be confused with the H-2A program, which applies to agricultural workers and which is also under attack by DOL, but that is a post for another day. H-2B should also not be confused with the H-1B program for specialty (often high-tech) occupations.

The H-2B program is capped at 66,000 visas annually, but in the past couple of years fewer than 48,000 visas per year have been claimed. It should come as no surprise that with decreased business activity during the great recession, many employers need fewer employees to keep up with customer demand. But even with an average national unemployment rate of nearly 9% over the past year, there continue to be numerous temporary and seasonal jobs that U.S. workers simply do not want to perform. H-2B workers often fill these jobs and by doing so enable businesses across the country to flourish and employ scores of U.S. workers in other positions.

DOL’s culminated its first assault on the H-2B program in 2011 when the agency decided to dramatically accelerate implementation of the new wage regulations and require employers to immediately increase H-2B wage rates by, in some cases, more than 120%. DOL launched this broadside based on an illogical premise that the wages being paid by H-2B employers, which are set by DOL to ensure no adverse effect on U.S. workers, were somehow causing wage depression. Never mind that DOL produced no evidence of wage depression caused by H-2B workers. Nor did DOL explain how a mere 48,000 H-2B workers, spread across dozens of occupations from coast to coast could possibly result in wage depression in an economy that employs nearly 140 million people.

Perhaps most glaring was DOL’s failure to explain why, even if wage depression did exist, it would not be more likely to be the result of some 10 million undocumented in the workforce, rather than the 48,000 H-2B visa holders who were in the country legally working (at DOL-mandated wages) for only a few months at a time. Just a few years ago in another rulemaking, DOL reached that precise conclusion: to the extent any wage depression could be said to exist, it is likely the result of the undocumented who frequently toil in an underground economy.

In stark contrast to DOL’s current baseless assertions, economic studies have found that rather than depressing wages, H-2B employment is associated with rising wages, and perhaps just as importantly, job growth.

Facing the ruinous costs that would be imposed by DOL’s 2011 regulations, several H-2B employers and industry trade associations filed two separate lawsuits in September (one in Louisiana and one in Florida) against DOL in an effort to block the wage regulations from taking effect. It turned out that employers were not the only ones outraged by DOL’s actions. Before either court could rule on the employers’ requests for an injunction, Congress entered the fray. Democrats and Republicans, in a rare show of bipartisanship, joined together to stop the DOL regulations for the remainder of the fiscal year with an amendment to the agency’s 2012 funding bill. Barbara Mikulski of Maryland, one of the Senate’s most liberal members, led that successful effort. As a result of the political fallout, and in a major rebuke to his own Department of Labor, the President was left with no real option other than to sign the legislation into law.

Undaunted, however, DOL continues its White House-approved assault on the H-2B program with the latest round of regulations scheduled to take effect on April 23. Congress is watching and over the past couple of weeks, the Labor Secretary has been aggressively questioned during budget hearings about the rationale for Department’s actions. Largely dissatisfied with her answers, members of both the House and Senate have now introduced resolutions disapproving of the regulations. Unless these latest regulations are blocked by a federal judge or by Congress, 2012 could mark the beginning of the end not just for the H-2B program, but also for a number of U.S. businesses that rely on H-2B workers. As the old saying goes, actions speak louder than words. Unfortunately, the Administration’s troubling actions thus far implementing immigration reform are a long way from the President’s soaring rhetoric on the topic. This disconnect should give pause to both employers and immigration practitioners who believe we can’t wait for this President to act.

Since the issuance of the January 8, 2010 guidance memorandum by Donald Neufeld, concerning the employer-employee relationship in H-1B petitions (Neufeld Memo), especially when an employer places an H-1B worker at a third party client site, workers at IT consulting and staffing companies have been the most adversely impacted. Indeed, it seems that the Neufeld Memo was designed to kill the staffing company.

The adverse effects of the Neufeld Memo have been felt most keenly by Indian nationals on H-1B visas who make up most of the workforce at such companies. This legitimate IT business model, which has been readily embraced by US corporations, is associated with a distasteful term in immigration parlance, namely the “job shop,” whose presence has become ubiquitous with Indian beneficiaries of employment visa petitions. The heightened scrutiny, often leading to an arbitrary denial, is exercised even if the USCIS has approved the H-1B petition previously on the exact same facts. Most problematically, H-1B visa applicants face unreasonable and arbitrary treatment at US Consulates in India, and are subject to unnecessary demands for the same documentation even after they were submitted to the USCIS, resulting in denials or recommendations for revocation of their petitions. Most Indian H-1B visa holders are fearful of travelling to India presently out of fear that they will be denied a visa based on an approved petition. CBP at ports of entry has also exercised this subjective scrutiny over Indian H-1B entrants in the IT consulting field at ports of entry.

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.

Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?

A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.

It is heartening to know that the failure to submit direct document from the end client will not be fatal. It is often times very difficult to obtain such a letter from the end client, especially when there are multi-vendor arrangements between the end client and the H-1B petitioner. Moreover, the end client may not want to be involved in any way in the visa petitioning process, without realizing that its reluctance to submit a letter can result in a denial of the H-1B petition and deprive it of a crucial worker for its project. The revised Q & A states that the petitioner “may submit a combination of any documents to establish, by a preponderance of the evidence, that the required [employer-employee] relationship will exist.” It is hoped that USCIS will not willfully ignore this guidance. Also, consuls should note that the absence of direct documentation from the end client should not cause them to refuse the H-1B visa, and recommend to the USCIS that the H-1B petition be revoked.

Also welcome is the absence of the pejorative term “job shop” in the answer to Question 13, and the fact that the Q&A states that a consulting or staffing company can still demonstrate through the preponderance of the evidence that it has the right to control the work of the beneficiary, even though he or she may be at a third party client site. It also provides helpful tips on how the consulting or staffing firm can demonstrate a right of control through conducting performance reviews, training and counseling for the beneficiary. While the USCIS would doubtless prefer the daily assertion of actual control by the H-1B petitioner even though it has professed that the H-1B employer only exercise the right of control, it is encouraging to note that this latest guidance does indeed provide concrete examples that are truly indicative of “the right to control.” It would appear that, so long as the indicia of ultimate supervision are present, the absence of day-to-day review will not be fatal. Such flexibility will not only restore a utilitarian suppleness to the H-1B but to other non-immigrant visa categories, notably the off-site L-1B intra-company transferee, where artificial notions of rigid control have also proved consistently at variance with contemporary business practice.

Beyond that, while the H-1B petitioner must always retain primary control, Neufeld redux does not demand total or exclusive control. This could mean, for example, that input from end users as part of performance reviews would not only be tolerated but sanctioned. While the selection of locations and assignments remain the province of the H-1B petitioner, as they should, there is no reason why daily on-the-job consultations with end user management cannot take place consistent with retention of H-1B status. A distinction between first and last decisions as compared to every day tactical adjustments is good news for an economy still struggling to get back on its feet. Though this may not have been their intent, the drafters of this update have brought the Neufeld memorandum closer to what Judge Kessler had in mind when she dismissed the Broadgate complaint:

To summarize, the Court concludes the Memorandum establishes interpretive guidelines for the implementation of the Regulation, and does not bind USCIS adjudicators in their determinations of Plaintiffs’ H-1B visa applications

This latest guidance represents an unspoken but nonetheless enlightened attempt to align the Neufeld Memorandum with the way America works. If followed, it can help save H-1B petition requests from impending doom. The only remaining issue is whether this revised Q&A will be seriously followed by the USCIS officers, and in turn, by the US Consulates. Regardless, an H-1B petitioner whose business model involves placing H-1B workers at third party client sites should actively rely on this revised Q&A when filing H-1B petitions or when responding to requests for evidence to assert its right of control over the beneficiary.

There is a larger reason why those of us who have so strenuously attacked the Neufeld Memorandum should welcome this revision. The absence of guidance is the lawyer’s worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is tangential while glossing over the truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator is also at sea. Uncertain what standards to employ, frustrated by nagging suspicion that agile advocacy by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst at the Vermont or California Service Center faced with a subtle H-1B fact pattern looks in vain to Washington for clarity that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is certain, almost anything can happen.

That is where the Neufeld Memorandum and the August 2011 guidance left us (although the earlier guidance consistent with DHS’s policy to welcome entrepreneurs clarified how an owner of a company could get an H-1B visa). Not really knowing how the USCIS would interpret the third party placement of an H-1B temporary worker, we were left with a Hobson’s choice between bedlam and litigation. The only thing that was certain was the absence of certainty itself. That is why this most recent Neufeld Q&A is so welcome for it has within it the potential to restore clarity and stability to a singularly important question of law in the increasingly contentious H-1B debate at a time when both qualities were singularly lacking. Rhetoric is not reality, however, and the possibility that skeptical USCIS adjudicators will simply ignore this most recent guidance remains a disturbing possibility. We all know from bitter experience the gap between promise and performance. Good intentions in Washington DC can be frustrated quite well by sustained resistance in the trenches. If the wisdom of good men and women will prevail, this will not happen. Hopefully, the deliberate deployment and informed application of this newly minted wisdom will turn the Neufeld Memo from a symbol of intransigence into a tool for nuanced adjudication. That will deserve the genuine approbation of all those who doubtless will wonder why the USCIS did not think of this earlier.

On the other hand, this form of self-revelation can be cathartic and possibly beneficial. Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows. Some of these avenues are described in a useful 73-page online resource, "The Life after College Guide for Undocumented Students," published by the nonprofit, Educators for Fair Consideration (E4FC).

Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a "D3" waiver under Immigration and Nationality Act (INA) § 212(d)(3). This is a risky proposition. It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security's Admissibility Review Office (ARO) -- a unit of U.S. Customs and Border Protection -- which must approve it. If the waiver is not granted, a DREAMer who'd entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.

The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.

The guide, quite correctly however, cautions DREAMers:

It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.

With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).

Build Your Tribe. No DREAMer should face the federal government alone. Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though the government may deny that publicity has any effect on their actions, publicity helps. Paraphrasing Hillary Clinton (even if she didn't say it first or quite this way), "it takes a village to raise a [DREAM] child."

Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law's forgiveness provisions. The immigration laws allow foreign citizens to obtain "immigrant visa classification" in many different ways. It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer's labor certification, as well as through self-sponsorship options under the "Extraordinary Ability" and "National Interest Waiver" avenues. It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer's intellectual property, valued at least a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States. As an initial prerequisite, AOS requires that the applicant have been inspected and "admitted or paroled." Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold. If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission. Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for "technical reasons;" or (2) if it was other than through the fault of the applicant. See my co-authored article, "Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless." ("Imagining the Improbable"). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through "technical reasons," e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.

Seek Lawful Nonimmigrant Status without leaving the United States. Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories. As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if "extraordinary circumstances" can be established. Extraordinary circumstances are decided on a case-by-case basis. As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as "equitable tolling" to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place. INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum. Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.

4. Apply to USCIS for employment authorization, while presenting evidence of eligibility for "deferred action" status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low. According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings "provisionally amenable" to a grant of PD. If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of "deferred action," also sometimes known as "deferred departure," according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the "Non-Priority Program." Although the Operations Instructions (OIs) of USCIS's predecessor, the Immigration and Naturalization Service, have been superseded, "deferred action" status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he "has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment." Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief: The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered: (A) the likelihood of ultimately removing the alien, including:

(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);

(2) the age or physical condition affecting ability to travel;

(3) the likelihood that another country will accept the alien;

(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;

(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;

(C) the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);

(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).

* * *

To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism. So be it. My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won.

Rather, this is where your tribe and the tribes of all the DREAMers must spring into action. Mount a campaign to persuade USCIS to embrace these approaches in individual cases. Present the most worthy and compelling cases first. Refrain from filing cases with little hope for success. Publicize the outcomes of the successes and failures. Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality. The DREAMers, after all, are the innocents. They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law's good graces under remedial provisions that past administrations have created.

If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them. Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers -- in large numbers -- to ask for what the law clearly allows.

So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek. Instead, come out, come out, wherever you are.

When I was a child and someone called me a name or said something hurtful I shielded myself with these magic words . . . “Sticks and stones will break my bones but names will never hurt me.” Brave and sometimes helpful though these words were, they weren’t true. Words really can hurt us deeply. We realize as we grow that in fact words are powerful and that the words we choose matter. We learn that there are evocative, racist, sexist, or hateful words that shouldn’t be spoken.

My Grandma referred to African Americans as “nigros”, which I thought was appallingly close to a really bad word and mortified me every time she said it. At first I cut her some slack, allowing for the fact that she was an older woman (born in 1900) unaware of how the words describing race had changed in her lifetime. But then my brother dated a woman from India and Grandma asked, “But isn’t she a nigro?” It confirmed my suspicion that the word wasn’t spoken in innocence. In Grandma’s mind the word “nigro” meant someone who is outside our acceptable circle. It was an ostracizing word that made clear that we white people were different, that we were better.

The word “illegals” has similar power. It connotes the idea of people who are far outside our circle of acceptable friends. We, the “legal” ones, are better than they are. When I think about the word “illegals” the first thing that strikes me is that it is a descriptive phrase that has been turned into a noun, which has happened only recently. When I first started practicing immigration law over twenty years ago no one ever referred to “illegals”. They might be “undocumented people”, “people without papers”, or even the offensive ”illegal aliens” (how’s that for a phrase connoting outsiders?) but never just “illegals”. The use of nouns to distance ourselves from other groups of people is common. Overweight people are “fatties”. Homosexual people are “homos”. We recognize, however, that these words aren’t polite or kind and most of us know better than to use them.

We do call people who’ve committed crimes “criminals” because they’ve engaged in behavior that divides them from polite and civilized society. Ostracizing them is considered ok because they’ve done something bad. They deserve it, at least up until the point at which they’ve paid their dues. A friend of mine who is never soft on crime once argued that it is ok to call undocumented people “illegals” for the same reason that we call people “criminals”. Reasoning that the undocumented people among us have committed crimes, which is what has made them “illegal” in the first place, it is acceptable to shun them.

So let’s examine what crimes have been committed by those who are unauthorized to be in the U.S. Those adults who enter the U.S. without inspection have committed a federal misdemeanor which carries a fine of between $25 and $250 or a maximum imprisonment of 6 months. As such, it is a Class B federal misdemeanor, a petty offense which is on a par with a first time DUI. There is no crime greater than this for first time offenders. (Do we brand those who have first-time DUI’s as “criminals” or do we look upon them more as petty offenders, who can redeem themselves and learn from their mistakes?)

For the vast majority of unauthorized people, however, it is critical to realize that NO crime has been committed. As my colleague Dan Kowalski argues eloquently, citing Keith Cunningham-Parmeter and his excellent law review article, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, ”[N]early half of all people described as ‘illegal aliens’ obtained their ‘illegal’ status by overstaying valid visas — a civil immigration violation that involves no criminal conduct whatsoever.”

Add them to the groups of people who were brought to the U.S. as innocent children, the asylum seekers who are awaiting their day in court, and the students who have failed to maintain their full course of study and you have a group far larger than those Class B petty offenders, all branded as “illegals” who have not committed any crimes.

The other thing at play here is race. If you close your eyes and imagine a person who fits the word “illegal” I would bet that you don’t envision a Canadian (even though we see plenty of Canadians who’ve wandered south and for a variety of reasons have never gone home.) As Keith Cunningham-Parmeter says, “Through metaphor, the immigrant becomes the alien, the alien becomes the illegal, and the illegal becomes the Mexican.” This is why nearly half of all Latino voters polled find the term “illegal immigrant” offensive. We’re talking about Latino U.S. citizens who feel this way, which is something politicians would be smart to pay attention to.

If you still don’t believe a metaphoric link has been created between Latinos and “illegals”, watch this clip of the Southern Mississippi Band chanting “Where’s your green card?” as a (very legal) Puerto-Rican born player from the other team shoots free throws. It is likely no coincidence, either, that this happened within hours of the Mississippi house passing an Arizona-style immigration bill.

In response to the racism and hatred that the word “illegals” engenders, the on-line magazine Colorlines began a campaign two years ago called “Drop the I Word”. Even though this word remains pervasive in our media, the 7800-member Society of Professional Journalists recognized its powerful, insidious effect and voted to drop it last fall. We can do our bit too and take the pledge to relegate ”illegals” to that obscure place where my Grandma’s offensive word “nigros” now rests. I just did.

Charles Kuck, ABIL PresidentMusings on ImmigrationThe Georgia State Senate acted recently to pass an anti-immigration measure aimed at stopping 300 Georgia residents who happen to not have legal status from attending public colleges and universities in Georgia, despite the fact that they are paying out-of-state tuition. The Georgia House is moving to pass similar legislation at the behest of House Judiciary Non-Civil Committee Chair, Cobb County resident, and AllState Insurance Attorney Rich Gollick.

THE RATIONALE The rationale behind this bill (besides the red herring argument that local governments needed clarification on whether they could accept electronic copies of "secure and verifiable documents"), is that the undocumented students are somehow using taxpayer dollars and taking spots from U.S. citizens. You heard these arguments from all the sponsors of this bill in the Senate. These reasons for supporting this bill are not based in either reality or facts. In Georgia, no undocumented student can go to a Georgia state college or university that refuses admission to qualified U.S. citizens. That means that there are NO undocumented students at UGA, Georgia Tech, GSU, Georgia State College, or Georgia Health Sciences University (formerly the Medical College of Georgia). So, the FACT is that no undocumented student is taking a spot from another U.S. citizen who is a qualified applicant for that Georgia college.

The other rationale for supporting this bill is that undocumented students are using taxpayer money to attend Georgia colleges. Again, this is false. Under rules passed last year by the State Board of Regents, undocumented students must pay out-of-state tuition (even though virtually all of them grew up and reside in Georgia). The actual cost of the education provided is LESS than the cost of out-of-state tuition, which means that undocumented students actually help FUND the education costs of U.S. citizens! These students are not costing the state any money, they are GIVING money to Georgia.

Finally, let's not forget we are talking about 300 young men and young women, with the courage, fortitude and focus to push forward in the face of overwhelming odds. These are NOT the children from whom we should be stealing hope. These are the children we should be applauding. Some desperately argue that "why are these kids going to school? They cannot work upon graduation." Not true! These kids might then qualify for a work visa, which they could obtain, along with a waiver under immigration law, after leaving the U.S. and return and work here. Further, these bright, dedicated, and visionary students could also decide to leave the U.S. with their education for better opportunities elsewhere, like many of the foreign students already enrolled in our Georgia colleges.

WHO IS BEHIND THIS BILL? But, the facts are not important when dealing with the Georgia State Legislature. Senate Bill 458 was the focus of a great deal of rhetoric from the usual crowd of anti-immigration Senators, such as Senator Chip Rogers and Senator Barry Loudermilk, the two chief sponsors of this legislation. In one picture taken while Senator Rogers was testifying in favor of SB 458, it is clear who has his back--Georgia's own self-styled leader of the anti-immigration movement, Donald King.

After a great deal of debate, and apparently a lot of second thoughts on behalf of some rational Republicans in the State Senate, SB 458 passed along a party line vote, 34-19. However, it appears that many of those voting had not actually read the language of the bill they voted one. A review of SB 458 shows that it is not altogether clear exactly what this bill might now do, and in fact it has many more consequences that just blocking access to Georgia colleges for qualified undocumented students. To paraphrase the words of Inigo Montoya from the Princess Bride: "I do not think that the Bill means what you think it means."

WHAT SB 458 REALLY MEANSThe current version of SB 458 reads, as virtually all legislation does, like Greek to most folks. The key to understanding any piece of legislation in process it so look for the crossed out or underlined words. Section 1 of SB 458 has a key amendment to Georgia Code Section 50-36-1, in the definition of "Public Benefit." "Public Benefit is changed to be any public benefit "whether or not such benefit is subsidized by state or federal funds." Each of the then previously listed items remained, such as adult education, authorization to conduct a commercial enterprise or business (business license), a business loan, health benefits, registration of a regulated business, rent assistance or subsidy, state grant or loan, State ID card, Tax certificate required to conduct a commercial business, temporary assistance for needy families, unemployment insurance and welfare to work. The new item added appears to be "professional licenses." All "Public Benefits" applicants will now have to go through the USCIS SAVE system to verify immigration status, before the state political entity can issue whatever benefit is requested.

SECTION 1 Section 1 then requires the Attorney General to give a report by August 1 each year on WHAT is actually included in the Public Benefits listed in the statute, specifically forbidding Attorney General Olens from removing anything from the list, only allowing him to ADD things to the list. So, it appears the state legislature is telling the Attorney General to figure out what each of the Public Benefits actually include. Attorney General Sam Olens will have to decide if "Adult Education" actually includes post-secondary education in Georgia. What is Adult Education? Who knows, it is not defined in Georgia Law. If the Attorney General does not include post-secondary education" in his definition, then presumably Donald King can file a complaint against the Attorney General with the Georgia Immigration Enforcement Review Board for not enforcing immigration related laws in Georgia. Why would Senator Chip Rogers want to do this to Attorney General Sam Olens? Maybe someone should ask him.

Section 1 also struck from another section of that same statute, the section which specifically stated that Verification of Lawful Presence was NOT required for Post-Secondary Education . Presumably by striking this exemption, the State Senate is trying to send a message to the Attorney General that Adult Education does include Post-Secondary Education. Another argument is that by striking the words "Post-Secondary Education" from the exemption, the State Senate is saying that it is not even necessary to consider post-secondary education as a public benefit, and thus the Board of Regents has complete authority to determine whether an undocumented student can attend a Georgia college. Again, a rather vague, and unclear reference in the context of the larger bill.

The next key part of SB 458 adds the requirement that each applicant for ANY public benefit must submit a "secure and verifiable document," AND sign a sworn affidavit verifying their lawful presence in the U.S. This creates an entire new level of bureaucracy in every layer of Georgia's government that deals with the public and provides benefits. Inarguably, it is an unnecessary requirement that will increase the costs of doing business with the state, lead to higher taxes, and does nothing to curtail the provision of services to those not authorized to receive it. The next simple step is just to make all Georgians carry a State ID card. Much like with HB 87, the Georgia State Senate did not have, introduce, or require a report on whether or not such a new regulatory requirement would COST the state or save the state money. If these effects are like anything done by HB 87, they will COST the state money!

SECTION 2 In Section 2, SB 458 struck from the secure and verifiable document list any foreign passport, unless that passport also includes a valid I-94 or I-94A, or "other federal document specify an alien's lawful immigration status." Obviously, the State Senate did not like Attorney General Olens' list! That is too bad, because the list was rationale, well thought out, and, under the circumstances, the best interpretation of the law. There is no reason that a foreign passport (which the federal government accepts for a valid id for ALL purposes without an I-94 card), cannot be relied upon as a secure and verifiable document for identity purposes.

Finally, Section 2 makes clear (and is the only legitimate reason for SB 458) that electronic copies of a secure and verifiable document are sufficient for purposes of Georgia law. Frankly, everything else in this legislation should be struck, and this provision should be all that remains of SB 458. It would pass unanimously.

WHAT A GOOD SB 458 LOOKS LIKE Here is the language of a clean bill:

Copies of secure and verifiable documents submitted in person, by mail, or electronically shall satisfy the definition of 'secure and verifiable document' in this chapter. For purposes of this paragraph, electronic submission includes a submission via facsimile, Internet, electronic texting, or any other electronically assisted transmission."

If passed by the House, these provisions of SB 458 would be Georgia law on July 1, 2012.

THE RESULTS OF SB 458, IF PASSED WILL BE MORE FEDERAL COURT LITIGATION By amending Georgia law with these items, Georgia is attempting to do what Alabama has done, interfere with the constitutional right of contract with the state and insert a requirement that every person dealing with the state for ANY reason prove that they are in the U.S. legally. Like the new voter ID requirements, these provisions are not only aimed and targeted against the undocumented population, but will negatively impact the poor and minorities in ways that can only be described as intentional. The 11th Circuit Court of appeals just stayed a similar provision in the Alabama Anti-Immigration law, with the clear message that it would find this law unconstitutional if the Supreme Court does not overrule the Arizona Anti-Immigration Law current set for oral argument before the Supreme Court on April 25.

One can only conclude that Senator Chip Rogers and Donald King want the Georgia Legislature to once again step into the quagmire of a federal lawsuit challenging another state anti-immigration statute. I cannot believe they really want to go through this again.

In its decision earlier this month in the case of Vera v. Attorney General of the U.S., the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration judge, even though the government could not produce proof that she had actually waived her right to such a hearing. The Third Circuit in Vera relied on a presumption that the waiver must have been properly executed since this was required by statute in order for Ms. Vera to be admitted under the VWP, and also on the argument, first accepted by the Third Circuit in the case of Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. 2010), that there was no prejudice to Ms. Vera from any lack of a knowing and voluntary waiver because the summary removal that she now faced was the same consequence that she would have faced if she had refused to sign the waiver. This second argument, similar to one made by the en banc Seventh Circuit in Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010), appears to be based on a misunderstanding regarding the consequences of the different types of summary removals that can occur under the VWP.

Additional background details regarding the VWP, as well as regarding the original decision by the Seventh Circuit in Bayo (preceding the en banc decision relied upon by Bradley), are available in a March 23, 2009 article by this author on our firm’s website. For present purposes, it suffices to note that VWP entrants are required by statute, as noted in Vera and its predecessors, to waive their rights to contest removal other than on the basis of an application for asylum, or similar relief from removal based on the threat of persecution or torture. If a VWP entrant who has waived these rights is found inadmissible at the time of applying for admission, or is later found to be deportable, he or she may be summarily removed without a hearing, absent an application for asylum or related relief. There are, however, important differences between the consequences of summary removal upon initial application for admission under the VWP, and summary removal after admission under the VWP.

The procedures regarding determinations of inadmissibility and deportability under the VWP are set forth in the regulations at 8 C.F.R. § 217.4(a)-(b), available online from the Government Printing Office. The provision regarding “Determinations of inadmissibility” at 8 C.F.R. § 217.4(a) addresses the procedure by which “[a]n alien who applies for admission under [INA § 217], who is determined . . . not to be eligible for admission under that section or to be inadmissible to the United States . . . will be refused admission into the United States and removed.” 8 C.F.R. § 217.4(a)(1). Relevant here, 8 C.F.R. § 217.4(a)(3) provides that “Refusal of admission under paragraph (a)(1) of this section shall not constitute removal for purposes of the Act.”

With regard to those admitted under the VWP, on the other hand, 8 C.F.R. § 217.4(b)(1) lays out the procedures for summary deportation of “[a]n alien who has been admitted to the United States under [the VWP] who is determined by an immigration officer to be deportable from the United States under one or more of the grounds of deportability listed in section 237 of the Act.” The immediately following paragraph, 8 C.F.R. § 217.4(b)(2), makes clear that “Removal by the district director under paragraph (b)(1) of this section is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act.”

The key distinction between an initial refusal of admission under 8 C.F.R. § 217.4(a) and a later summary deportation under 8 C.F.R. § 217.4(b), then, is that the former “shall not constitute removal for purposes of” the Immigration and Nationality Act (INA), but the latter has the same consequences as removal after full-fledged removal proceedings under INA section 240, 8 U.S.C. § 1229a. This distinction is important because removal under the INA has long-term consequences.

Most notably, one who has been removed is inadmissible under section 212(a)(9)(A) of the INA, 8 U.S.C. § 1182(a)(9)(A), for a period of time varying between five years and indefinitely, depending on the circumstances of removal. In the ordinary course, when a removal order is issued after proceedings that were not initiated upon the arrival of the person removed, and there is no question of a second removal or an aggravated felony conviction, the period of inadmissibility is ten years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)(I). One who wishes to seek readmission before this period has lapsed must obtain special consent to reapply for admission, pursuant to 8 U.S.C. § 1182(a)(9)(A)(iii). Such permission to reapply for admission can be sought from USCIS by filing an application on Form I-212, but will be granted only in the exercise of discretion and not automatically.

Summary refusal of admission to a VWP applicant, under 8 C.F.R. § 217.4(a), is not an order of removal for purposes of the INA according to 8 C.F.R. § 217.4(a)(3), and thus does not lead to a requirement that the refused applicant seek special permission to reapply for admission. Summary removal of a VWP applicant subsequent to admission under 8 C.F.R. § 217.4(b), on the other hand, has the same consequences as removal following ordinary removal proceedings according to 8 C.F.R. § 217.4(b)(2), which is to say that it will lead to at least a ten-year bar on readmission under 8 U.S.C. § 1182(a)(9)(A)(ii)(I) absent special, discretionary permission to reapply.

Thus, it was incorrect for the Third Circuit to say in Bradley and again in Vera that “Had Bradley known the contents of the waiver and refused to sign, he would be in the same position as he is now – subject to summary removal without a hearing” and thus unable to obtain status based on his marriage to a U.S. citizen. Bradley, 603 F.3d at 241; Vera, slip op. at 20. The summary removal without a hearing that Mr. Bradley and Ms. Vera would have faced at the time of their initial applications for admission, if they had refused to sign the VWP waiver based on a true understanding of what it meant, carried no collateral consequence of future inadmissibility to the United States. The summary removal that they faced after admission, on the other hand, carried a penalty of inadmissibility for 10 years.

Had Ms. Vera been refused admission when she came to the United States as a minor because she refused to sign the VWP waiver or was found unable to understand it, she would not have faced any bar on readmission to the United States. Now, however, she will, if removed under 8 C.F.R. § 217.4(b), be inadmissible under INA § 212(a)(9)(A) for a period of ten years. That alone would constitute the prejudice that the Third Circuit claimed was absent. Ms. Vera will also, if she is removed, likely be inadmissible for ten years under INA § 212(a)(9)(B), given her unlawful presence subsequent to admission, which she and Mr. Bradley would not have accrued if they had been refused admission because of refusal to sign a waiver—and which, even after they had accrued it, would not have precluded her or Mr. Bradley from adjusting status under INA § 245(a) based on a petition by a U.S. citizen immediate relative (such as a spouse) in the absence of the order of removal under 8 C.F.R. § 217.4(b) that is at issue here, so that there is indeed prejudice in this regard as well from subjecting Ms. Vera and Mr. Bradley to the strictures of the summary removal process despite the asserted lack of a knowing and voluntary waiver of rights by either of them. The Third Circuit’s suggestion that there was no prejudice in Vera and Bradley appears to have been based on the assumption that refusal of VWP admission under 8 C.F.R. § 217.4(a) and subsequent summary deportation under 8 C.F.R. § 217.4(b) are legally identical procedures with identical consequences, but this is not the case.

With this erroneous argument out of the way, the Third Circuit’s ruling in Vera appears to rest solely on the notion that a twelve-year-old girl must be presumed to have executed a knowing, voluntary, and meaningful waiver of her due process rights with regard to future removal from the United States simply because the governing statute and regulations indicate that the government ought to have required such a waiver prior to allowing her to enter the United States. That is a slender reed indeed, as discussed in a recent posting on the AILA Slip Opinion Blog. The Second Circuit’s decision in Galluzzo v. Holder, which the Third Circuit in Vera declined to follow and which held that a VWP entrant’s due process rights would have been violated (if prejudice were shown) when he was subjected to summary removal without any actual waiver, is significantly more convincing on that subject, and should be followed by other courts in the future. Indeed, it would make sense for even the Third Circuit, in the event of future panel or en banc reconsideration of Vera (or en banc reconsideration of its precedential value in a future case), to follow Galluzzo once the prejudice to someone in Ms. Vera’s situation has been explained.

With more than three decades of experience under my belt, I like to fancy myself an expert in immigration. Yet however much I think I understand the subject, new things surface that blow my mind and puncture my inflated sense of self. I have come to realize that much of what I "know," I merely surmise or sense. It's like looking at an arabesque from a distance, and then homing in, and being stunned by unnoticed details. Such was my experience reading the prepared remarks and listening to opening statements, testimony and the questioning of government witnesses at a March 6 subcommittee hearing of the House Homeland Security Committee. Convened by Rep. Candice Miller (R-MI), Chairwoman of the Subcommittee on Border and Maritime Security, the hearing delved into efforts by U.S. Immigration and Customs Enforcement (ICE) and the Department of State to deter, detect and apprehend visa overstayers, a problem population that Rep. Miller described as comprising 40% of all illegal immigration in America.

[ICE's] Counterterrorism and Criminal Exploitation Unit (CTCEU) is the first national program dedicated to the enforcement of nonimmigrant visa violations. Today, through the CTCEU, ICE proactively develops cases for investigation in cooperation with the Student and Exchange Visitor Program (SEVP) and the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program.

These programs enable ICE to access information about the millions of students, tourists, and temporary workers present in the United States at any given time, and to identify those who have overstayed or otherwise violated the terms and conditions of their admission.

Each year, the CTCEU analyzes records of hundreds of thousands of potential status violators after preliminary analysis of data from the Student and Exchange Visitor Information System (SEVIS) and US-VISIT, along with other information. After this analysis, CTCEU determines potential violations that warrant field investigations and/or establishes compliance or departure dates from the United States.

Between 15,000 and 20,000 of these records are analyzed in-house each month. Since the creation of the CTCEU in 2003, nearly 2 million such records using automated and manual review techniques have been analyzed. On average, ICE initiates approximately 6,000 investigative cases annually and assigns them to our special agents in the field for further investigation, resulting in over 1,800 administrative arrests per year.

Biometric information sharing between the Federal Bureau of Investigation’s Criminal Justice Information Services (FBI-CJIS) and US-VISIT is the foundation of Secure Communities’ use of Automated Biometric Identification System (IDENT)/Integrated Automated Fingerprint Identification System (IAFIS) interoperability.

Through Secure Communities’ use of IDENT/IAFIS interoperability, aliens—including those who have overstayed or otherwise violated their immigration status— who are encountered by law enforcement may be identified as immigration violators when fingerprints are submitted to the FBI-CJIS’s biometric database, IAFIS, and then to DHS/US-VISIT’s biometric database, IDENT.

Secure Communities’ use of this technology is deployed in over 2,300 jurisdictions in 46 states and territories. US-VISIT also analyzes biographical entry and exit records stored in its Arrival and Departure Information System to further support DHS’s ability to identify international travelers who have remained in the United States beyond their periods of admission.

ICE receives or coordinates nonimmigrant overstay and status violation referrals from US-VISIT Mission Support Services from three unique sources, which include: the typical overstay violation; a biometric watch list notification; and a CTCEU Visa Waiver Enforcement Program (VWEP) nomination.

Equally stunning were the following stats from State:

State maintains derogatory information in 42.5 million records found in the Consular Lookout and Support System (CLASS), its online database of visa lookout records. CLASS has grown more than 400 percent since 2001.

Almost 70 percent of CLASS records come from other agencies, including DHS, the FBI, and the DEA. CLASS also includes unclassified records regarding known or suspected terrorists (KSTs) from the Terrorist Screening Database (TSDB), which is maintained by the FBI’s Terrorist Screening Center (TSC) and contains data on KSTs nominated by all U.S. government sources.

State also screens visa applicants’ names against the historical visa records in its Consular Consolidated Database (CCD). A system-specific version of the automated CLASS search algorithm runs the names of all visa applicants against the CCD to check for any prior visa applications, refusals, or issuances. DHS and other federal agencies have broad access to the CCD, which contains more than 151 million immigrant and nonimmigrant visa records covering the last 13 years.

In January 2012, more than 20,000 officers from DHS, the FBI, and the Departments of Defense, Justice, and Commerce submitted more than two million visa record queries in the course of conducting law enforcement and/or counterterrorism investigations.

Visa applicants’ fingerprints are screened against DHS and FBI systems, which between them contain the available fingerprint records of terrorists, wanted persons, immigration law violators and criminals. In 2011, consular posts transmitted more than 8.6 million fingerprint submissions to these systems, and received from them more than 221,000 derogatory and criminal history records.

State uses facial recognition technology to screen visa applicants against a watchlist of photos of known and suspected terrorists obtained from the TSC, as well as the entire gallery of visa applicant photos contained in State's CCD.

In April 2008, consular officers at posts abroad obtained access to arrival and departure data for non-U.S. citizen travelers contained in the DHS Arrival Departure Information System (ADIS). State began running automated ADIS checks for every visa applicant in June 2011.

Since 2001, State has revoked approximately 60,000 visas for a variety of reasons, including nearly 5,000 for suspected links to terrorism.

As soon as information is established to support a revocation (i.e., information that could lead to an inadmissibility determination), a “VRVK” entry code showing the visa revocation is added to CLASS, as well as to biometric identity systems, and then shared in near-real time (within about 15 minutes) with the DHS lookout systems used for border screening.

Ironically, in the same week as the subcommittee hearing, civil rights and immigrant rights marchers retraced the path of Rev. Martin Luther King from Selma to Montgomery 47 years ago. Just as in 1965, no less than 2012, abuse of legal power against some threatens the liberty of all. Take a look at the video clip below if you need any reminding.